Policy paper

Annex B: draft Immigration Rules for the EU Settlement Scheme

Published 21 June 2018

This was published under the 2016 to 2019 May Conservative government

© Crown copyright 2018

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This publication is available at https://www.gov.uk/government/publications/eu-settlement-scheme-statement-of-intent/annex-b-draft-immigration-rules-for-the-eu-settlement-scheme

Draft Immigration Rules for the EU Settlement Scheme

Set out below is a draft of the Immigration Rules for the EU Settlement Scheme, in a new Appendix EU to those Rules. This is intended to inform our discussions with our scheme user groups and other stakeholders about the detailed basis on which it is proposed that the scheme will operate. We do not generally expect that applicants will need to consult the Immigration Rules for the scheme, but will be guided by the online application process itself and by supporting user-friendly guidance which will be available on gov.uk.

A final version of the Immigration Rules will be laid before Parliament under section 3(2) of the Immigration Act 1971. That version may differ from the draft set out below and from the approach set out elsewhere in this Statement of Intent, including in light of those discussions with stakeholders and others.

The draft Immigration Rules seek to reflect the basis for the EU Settlement Scheme set out in this Statement of Intent. Consistent with the draft text of the Withdrawal Agreement, the Immigration Rules for the scheme will enable EU citizens and their family members, and the family members of certain British citizens, to apply for leave under the 1971 Act on a basis which reflects their current EU law rights (e.g. under the Free Movement Directive and the case law of the Court of Justice of the European Union (CJEU)) and the more favourable provision which the UK has decided as a matter of domestic policy to make for them under the scheme.

The Immigration Rules are secondary legislation and therefore the draft Rules use some different, more technical terms for the policy approach to the scheme set out in this Statement of Intent. For example, the requirements for being ‘continuously resident’ in the UK set out in paragraph 3.4, above, are reflected in the draft Rules in the terms ‘continuous qualifying period’ (which is defined in Annex 1 to the Rules and which also covers other requirements, such as the circumstances in which that period has to begin by the end of the implementation period on 31 December 2020) and no ‘supervening event’ has occurred (also defined in Annex 1).

The requirements for the scheme and the procedure for granting leave under it are set out in paragraphs EU2 to EU8.

The requirements for making a valid application under the scheme are set out in paragraph EU9.

The eligibility requirements for settled status (indefinite leave to remain) are set out in paragraph EU11 (for EU citizens and their family members) and in paragraph EU12 (for the family members of certain British citizens: ‘Surinder Singh’ cases).

The eligibility requirements for pre-settled status (five years’ limited leave to remain) are set out in paragraph EU14.

The basis on which an application under the scheme will or may be refused on grounds of serious criminality, other public policy considerations or deception, as reflected in the draft text of the Withdrawal Agreement, are set out in paragraphs EU15 and EU16.

Appendix EU has been drafted to provide a largely self-contained set of Immigration Rules for the scheme. The terms defined in its Annex 1 will displace any definition of those terms used elsewhere in the Immigration Rules. Work continues on the technical relationship of Appendix EU to other parts of the Immigration Rules and will be reflected as appropriate in the Rules for the scheme to be laid before Parliament.

Appendix EU: EU citizens and family members

Purpose

EU1. This Appendix sets out the basis on which an EU citizen[footnote 39] and their family members, and the family members of a qualifying British citizen, will, if they apply under it, be granted indefinite leave to remain or limited leave to remain.

Requirements and procedure

EU2. The applicant will be granted indefinite leave to remain, where the decision-maker is satisfied that:

  • A valid application has been made in accordance with paragraph EU9;

  • The applicant meets the eligibility requirements for indefinite leave to remain in accordance with paragraph EU11 or EU12; and

  • The applicant is not to be refused on grounds of suitability in accordance with paragraph EU15 or EU16.

EU3. The applicant will be granted five years’ limited leave to remain, where the decision-maker is satisfied that:

  • A valid application has been made in accordance with paragraph EU9;

  • The applicant does not meet the eligibility requirements for indefinite leave to remain in accordance with paragraph EU11 or EU12, but meets the eligibility requirements for limited leave to remain in accordance with paragraph EU14; and

  • The applicant is not to be refused on grounds of suitability in accordance with paragraph EU15 or EU16.

EU4. Where a person has been granted limited leave to remain under this Appendix:

  • They must continue to meet the eligibility requirements for that leave which they met at the date of application or meet other eligibility requirements for limited leave to remain in accordance with paragraph EU14;[footnote 40] and
  • They remain able to apply for indefinite leave to remain under this Appendix and will be granted this where the decision-maker is satisfied that the requirements in paragraph EU2 are met.

EU5. Where a person has been granted indefinite leave to remain or limited leave to remain under this Appendix and that person also has a right to reside under the EEA Regulations, the leave does not have effect to the person’s detriment in so far as the leave is incompatible with that right to reside for as long as that person has that right.

EU6. A valid application made under this Appendix which does not meet the requirements for indefinite leave to remain or limited leave to remain will be refused.

EU7. Annex 1 sets out definitions which apply to this Appendix. Any provision made for those terms elsewhere in the Immigration Rules does not apply to an application made under this Appendix.[footnote 41]

EU8. Annex 2 applies to the consideration by the decision-maker of a valid application made under this Appendix.

Valid application

EU9. A valid application has been made under this Appendix where:

(a) It has been made in the UK using the required application process;

(b) Any required fee has been paid in full in accordance with the required application process;

(c) The required proof of identity and nationality has been provided;

(d) The required biometrics have been provided.

EU10. An application will be rejected as invalid where it does not meet the requirements in paragraph EU9.

Eligibility for indefinite leave to remain

Persons eligible for indefinite leave to remain as a relevant EU citizen or their family member

EU11. The applicant meets the eligibility requirements for indefinite leave to remain as a relevant EU citizen or their family member where the decision-maker is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, one of conditions 1 to 7 set out in the following table is met:

Condition Is met where:
1. The applicant has a documented right of permanent residence and no supervening event has occurred
2. The applicant is a relevant EU citizen, or a family member of a relevant EU citizen, and there is valid evidence of their indefinite leave to enter or remain
3. The applicant is (a) a relevant EU citizen, (b) a family member of a relevant EU citizen or (c) a family member who has retained the right of residence, and has completed a continuous qualifying period of five years in any (or any combination) of those categories and since then no supervening event has occurred
4. (a) The applicant is a relevant EU citizen who is a person who has ceased activity; and (b) Since they did so, no supervening event has occurred
5. (a) The applicant is a family member of a relevant EU citizen who is a person who has ceased activity; and (b) The relevant EU citizen has been or is being granted indefinite leave to remain under this Appendix (or would be granted that leave, if they made a valid application under this Appendix); and (c) Sub-paragraph (a) was met at the point at which the relevant EU citizen became a person who has ceased activity; and (d) Since the relevant EU citizen became a person who has ceased activity, no supervening event has occurred
6. (a) The applicant is a family member of a relevant EU citizen who has died and the relevant EU citizen was resident in the UK as a worker or self-employed person at the time of their death; and (b) The relevant EU citizen was resident in the UK for a continuous qualifying period of at least two years before dying, or the death was the result of an accident at work or an occupational disease; and (c) The applicant was resident in the UK with the relevant EU citizen immediately before their death and since then no supervening event has occurred
7. (a) The applicant is a child under the age of 21 years of a relevant EU citizen, or of their spouse or civil partner, and either: (i) The marriage was contracted or the civil partnership was formed before the specified date; or (ii) That person was the durable partner of the relevant EU citizen before the specified date (the definition of durable partner in Annex 1 being met before that date rather than at the date of application) and the partnership remained durable at the specified date; and (b) The relevant EU citizen (or, as the case may be, their spouse or civil partner) has been or is being granted indefinite leave to remain under this Appendix (or, in the case of an Irish citizen who has not made a valid application under this Appendix, they would be granted that leave if they made such an application)

Persons eligible for indefinite leave to remain as a family member of a qualifying British citizen

EU12. The applicant meets the eligibility requirements for indefinite leave to remain as a family member of a qualifying British citizen where the decision-maker is satisfied, including by the required evidence of family relationship, that, at the date of application, the applicant is resident in the UK and is a family member of a qualifying British citizen and that condition 1 or 2 set out in the following table is met:

Condition Is met where:
1. The applicant has completed a continuous qualifying period of five years, by being in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation 6), and since then no supervening event has occurred
2. The applicant is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date); the applicant is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen was a qualified person under regulation 6); and the spouse or civil partner has been or is being granted indefinite leave to remain under this Appendix

EU13. The reference to the applicant completing a continuous qualifying period of five years:

  • In condition 1 in the table in paragraph EU12 can include a period (or combination of periods) during which the applicant was a relevant EU citizen, a family member of a relevant EU citizen or a family member who has retained the right of residence before becoming the family member of a qualifying British citizen; and

  • In condition 3 in the table in paragraph EU11 can include a period during which the applicant was a family member of a qualifying British citizen before becoming (as the case may be) a relevant EU citizen, a family member of a relevant EU citizen or a family member who has retained the right of residence.

Eligibility for limited leave to remain

EU14. The applicant meets the eligibility requirements for limited leave to remain where the decision-maker is satisfied, including (where applicable) by the required evidence of family relationship, that, at the date of application, condition 1 or 2 set out in the following table is met:

Condition Is met where:
1. The applicant is a relevant EU citizen, a family member of a relevant EU citizen or a family member who has retained the right of residence, and is not eligible for indefinite leave to remain under this Appendix solely because they have completed a continuous qualifying period of less than five years
2. One of the following applies: (a) The applicant is a family member of a qualifying British citizen; is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and is not eligible for indefinite leave to remain under this Appendix solely because they have completed a continuous qualifying period of less than five years (b) The applicant is a child under the age of 21 years of the spouse or civil partner of the qualifying British citizen (and the marriage or civil partnership was formed before the specified date); the applicant is in the UK lawfully by virtue of regulation 9(1) to (6) of the EEA Regulations (regardless of whether in the UK the qualifying British citizen is a qualified person under regulation 6); and the spouse or civil partner has been or is being granted limited leave to remain under this Appendix

Suitability

EU15. An application made under this Appendix will be refused on grounds of suitability where any of the following apply at the date of decision:

(a) The applicant is the subject of an extant deportation order or of a decision to make a deportation order; or

(b) The applicant is the subject of an extant exclusion order or exclusion decision; or

(c) The applicant is subject to a removal decision under the EEA Regulations on the grounds of their non-exercise or misuse of rights under Directive 2004/38/EC.

EU16. An application made under this Appendix may be refused on grounds of suitability where, in relation to the application and whether or not to the applicant’s knowledge, false or misleading information, representations or documents have been submitted (including false or misleading information submitted to any person to obtain a document used in support of the application) and the information, representation or documentation is relevant to the decision whether or not to grant the applicant leave under this Appendix.

Annex 1 – Definitions

Adopted child

Means a child adopted in accordance with a decision taken by the competent administrative authority or court in the UK or in a country whose adoption orders are recognised by the UK, or in a particular case in which that decision in another country has been recognised in the UK as an adoption

Child

One of the following applies at the date of application:

(a) the person is the direct descendant of a relevant EU citizen (or of a qualifying British citizen) or of their spouse or civil partner and is under the age of 21 years; or

(b) the person is the direct descendant of a relevant EU citizen (or of a qualifying British citizen) or of their spouse or civil partner, is aged 21 years or over and is dependent on the relevant EU citizen (or on the qualifying British citizen) or on their spouse or civil partner.

‘Dependent’ means here that:

(a) having regard to their financial and social conditions, or health, the applicant cannot meet their essential living needs (in whole or in part) without the financial or other material support of the relevant EU citizen (or of the qualifying British citizen) or of their spouse or civil partner; and

(b) such support is being provided to the applicant by the relevant EU citizen (or by the qualifying British citizen) or by their spouse or civil partner; and

(c) where the applicant was aged 21 years or over when they came to the UK to join the relevant EU citizen or their spouse or civil partner, the need for such support existed in the applicant’s state of origin or in the state from which they came to the UK, but there is no need to determine the reasons for that dependence or for the recourse to that support.

In addition:

(a) ‘child’ includes an adopted child of, or a child born through surrogacy (where recognised in UK law) for, a relevant EU citizen (or a qualifying British citizen) or their spouse or civil partner, but does not include a child cared for by a relevant EU citizen (or by a qualifying British citizen) or their spouse or civil partner solely by virtue of a legal guardianship order or a formal or informal fostering arrangement;[footnote 42] and

(b) ‘direct descendant’ also includes a grandchild or great-grandchild, other than for the purpose of meeting condition 7 in the table in paragraph EU11 of this Appendix or condition 2 in the table in paragraph EU12; and

(c) ‘spouse or civil partner’ means (as the case may be) the person described in sub-paragraph (a)(i) of the entry for ‘family member of a qualifying British citizen’ or in sub-paragraph (a) of the entry for ‘family member of a relevant EU citizen’ in this table

Civil partner

At the date of application:

(a) the person is in a civil partnership (which exists under or by virtue of the Civil Partnership Act 2004), or is in a same sex relationship registered overseas which is entitled to be treated as a civil partnership under that Act, with a relevant EU citizen (or with a qualifying British citizen); and

(b) it is not a civil partnership of convenience; and

(c) neither party has another civil partner, a spouse or a durable partner with (in any of those circumstances) immigration status in the UK based on that person’s relationship with that party

Continuous qualifying period

A period of residence in the UK:

(a) which began before the specified date (or after that date where the person is a family member of a relevant EU citizen and was resident outside the UK at that date); and

(b) during which none of the following occurred:

(i) absence(s) from the UK which exceeded a total of six months in any 12-month period, except for:

(aa) a single period of absence which did not exceed 12 months and was for an important reason (such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting); or

(bb) any period of absence on compulsory military service; or

(ii) the person served or is serving a sentence of imprisonment of any length in the UK, unless they have resided in the UK continuously for at least 10 years (and have the right of permanent residence in the UK under regulation 15 of the EEA Regulations) and the decision-maker considers that:

(aa) before serving a sentence of imprisonment, the person had forged integrating links with the UK; and

(bb) the effect of the sentence of imprisonment was not such as to break those integrating links; and

(cc) taking into account an overall assessment of the person’s situation, it would not be appropriate to treat the period of imprisonment as breaking the continuous qualifying period; or

(iii) any of the following, unless it has been set aside or no longer has effect in respect of the person:

(aa) any decision or order to exclude or remove under regulation 23 or 32 of the EEA Regulations; or

(bb) a decision to which regulation 15(4) of the EEA Regulations otherwise refers, unless that decision arose from a previous decision under regulation 24(1); or

(cc) an exclusion decision; or

(dd) a deportation order, other than under the EEA Regulations; and

(c) (where the period is less than five years) which continues at the date of application

Custody of a child

Means that the child normally lives with the applicant or does so part of the time, and includes arrangements agreed informally and those which are subject to a court order for determining with whom the child is to live and when

Date of application

The date on which the application is submitted under the required application process

Decision-maker

The Secretary of State

Dependent parent

The direct relative in the ascending line of a relevant EU citizen (or of a qualifying British citizen) or of their spouse or civil partner.

In addition:

(a) ‘direct relative in the ascending line’ includes a grandparent or great-grandparent; and

(b) ‘spouse or civil partner’ means (as the case may be) the person described in sub-paragraph (a)(i) of the entry for ‘family member of a qualifying British citizen’ or in sub-paragraph (a) of the entry for ‘family member of a relevant EU citizen’ in this table; and

(c) the dependence of the direct relative in the ascending line on the relevant EU citizen (or on the qualifying British citizen), or on their spouse or civil partner, is assumed

Dependent relative

At the date of application, the person:

(a) is a relative of their sponsor but not their spouse, civil partner, durable partner, child or dependent parent; and

(b) holds a relevant document as the dependent relative of their sponsor for the period of residence relied upon

‘Sponsor’ means here:

(a) a relevant EU citizen who has been or is being granted indefinite leave to remain or limited leave to remain under this Appendix (or who would be granted that leave, if they made a valid application under this Appendix); or

(b) the spouse or civil partner of such a relevant EU citizen, where the application for that relevant document was made before 1 February 2017

Deportation order

Means, as the case may be:

(a) an order made under regulation 32(3) of the EEA Regulations; or

(b) an order made under section 5(1) of the Immigration Act 1971 (in respect of conduct after the specified date by a relevant EU citizen or other person eligible for leave under this Appendix); or

(c) an order made in accordance with section 32(5) of the UK Borders Act 2007 (in respect of conduct after the specified date by a relevant EU citizen or other person eligible for leave under this Appendix)

Documented right of permanent residence

The decision-maker is satisfied from the information available to them that:

(a) the person has been issued by the Secretary of State with a document certifying permanent residence or a permanent residence card under regulation 19 of the EEA Regulations; and

(b) this document or card was issued or renewed within the last 10 years, and is not invalid under regulation 19(4)(c); and

(c) this document or card has not been revoked, and its renewal has not been refused, under regulation 24 (except where this occurred because the person had been absent from the UK for a period of more than two, and no more than five, consecutive years); and

(d) the person’s right to reside has not been cancelled under regulation 25

Durable partner

At the date of application:

(a) the person is in a durable relationship with a relevant EU citizen, with the couple having lived together in a relationship akin to a marriage or civil partnership for at least two years (unless there is other significant evidence of the durable relationship); and

(b) the person holds a relevant document as the durable partner of the relevant EU citizen for the period of residence relied upon, unless the date of application is after the specified date and the person was resident outside the UK at that date; and

(c) it is not a durable partnership of convenience; and

(d) neither party has another durable partner, a spouse or a civil partner with (in any of those circumstances) immigration status in the UK based on that person’s relationship with that party

In addition, to meet condition 6 in the table in paragraph EU11 of this Appendix, the above requirements are to be met with reference to the period immediately before the death of the relevant EU citizen rather than to the date of application

Educational course

A general educational course, apprenticeship or vocational training course, as provided by regulation 10(7) of the EEA Regulations

EEA Regulations

The Immigration (European Economic Area) Regulations 2016 (as they have effect at the date of application)

EU citizen

A person who is a national of: Austria, Belgium, Bulgaria, Croatia, Republic of Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain or Sweden

Evidence of birth

Means:

(a) (in the case of a child) the full birth certificate(s) or other document(s) which the decision-maker is satisfied evidences that the applicant is the direct descendant of the relevant EU citizen (or of the qualifying British citizen) or of their spouse or civil partner, as described (as the case may be) in sub-paragraph (a)(i) of the entry for ‘family member of a qualifying British citizen’ or in sub-paragraph (a) of the entry for ‘family member of a relevant EU citizen’ in this table; or

(b) (in the case of a dependent parent) the full birth certificate(s) or other document(s) which the decision-maker is satisfied evidences that the applicant is the direct relative in the ascending line of the relevant EU citizen (or of the qualifying British citizen) or of their spouse or civil partner, as described in sub-paragraph (a) above

Exclusion decision

Means a direction given by the Secretary of State that a person must be refused entry to the UK on the ground that that person’s presence here would not be conducive to the public good (in respect of conduct after the specified date by a relevant EU citizen or other person eligible for leave under this Appendix)

Exclusion order

Means an order made under regulation 23(5) of the EEA Regulations

Family member of a qualifying British citizen

A person who has satisfied the decision-maker, including by the required evidence of family relationship, that:

(a) they are (and for the relevant period have been) or (as the case may be) they were (for the relevant period or at the relevant time):

(i) the spouse or civil partner of a qualifying British citizen, and the marriage was contracted or the civil partnership was formed before the specified date; or

(ii) the child or dependent parent of a qualifying British citizen; or

(iii) the child or dependent parent of the spouse or civil partner of a qualifying British citizen, as described in sub-paragraph (i), above; and

(b) they satisfied regulation 9(2) and (4)(a) of the EEA Regulations (as the family member (“F”) to whom those provisions refer) immediately before returning to the UK with the qualifying British citizen (who is to be treated as the British citizen (“BC”) to whom those provisions refer)

Family member of a relevant EU citizen

A person who has satisfied the decision-maker, including by the required evidence of family relationship, that they are (and for the relevant period have been) or (as the case may be) they were (for the relevant period or at the relevant time):

(a) the spouse or civil partner of a relevant EU citizen, and:

(i) the marriage was contracted or the civil partnership was formed before the specified date; or

(ii) the applicant was the durable partner of the relevant EU citizen before the specified date (the definition of ‘durable partner’ in this table being met before that date rather than at the date of application) and the partnership remained durable at the specified date; or

(b) the durable partner of a relevant EU citizen, and:

(i) the partnership was formed and was durable before the specified date; and

(ii) the partnership remains durable at the date of application (or it did so immediately before the death of the relevant EU citizen); or

(c) the child or dependent parent of a relevant EU citizen; or

(d) the child or dependent parent of the spouse or civil partner of a relevant EU citizen, as described in sub-paragraph (a), above; or

(e) resident in the UK before the specified date as the dependent relative of a relevant EU citizen (or of their spouse or civil partner, where the application for the relevant document referred to in the entry for ‘dependent relative’ in this table was made before 1 February 2017) and that family relationship and dependency existed before the specified date (or, as the case may be, before 1 February 2017)

Family member who has retained the right of residence

A person who has satisfied the decision-maker, including by the required evidence of family relationship, that the requirements set out in one of sub-paragraphs (a) to (d), below, are met:

(a) the applicant is a non-EU citizen who:

(i) was the family member of a relevant EU citizen (or of a qualifying British citizen) and that person died; and

(ii) was resident in the UK as the family member of a relevant EU citizen (or of a qualifying British citizen) for a continuous qualifying period of at least a year immediately before the death of that person; or

(b) the applicant is an EU citizen or non-EU citizen who:

(i) is the child of:

(aa) a relevant EU citizen (or of a qualifying British citizen) who has died or of their spouse or civil partner immediately before their death; or

(bb) a person who ceased to be a relevant EU citizen (or a qualifying British citizen) on ceasing to reside in the UK or of their spouse or civil partner at that point; and

(ii) was attending an educational course in the UK immediately before the relevant EU citizen (or the qualifying British citizen) died or ceased to be a relevant EU citizen (or a qualifying British citizen), and continues to attend such a course; or

(c) the applicant is an EU citizen or non-EU citizen who is the parent with custody of a child who meets the requirements of sub-paragraph (b); or

(d) the applicant (“A”) is a non-EU citizen who:

(i) ceased to be a family member of a relevant EU citizen (or a qualifying British citizen) on the termination of the marriage or civil partnership of A; and

(ii) was resident in the UK at the date of the termination; and

(iii) one of the following applies:

(aa) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership, the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had been resident in the UK for a continuous qualifying period of at least one year during its duration; or

(bb) A has custody of a child of the relevant EU citizen (or the qualifying British citizen); or

(cc) A has the right of access to a child of the relevant EU citizen (or the qualifying British citizen), where the child is under the age of 18 years and where a court has ordered that such access must take place in the UK; or

(dd) the continued right of residence in the UK of A is warranted by particularly difficult circumstances, such as where A or another family member has been a victim of domestic violence or abuse whilst the marriage or civil partnership was subsisting

Full birth certificate

A birth certificate recognised in the UK which records the name of the mother and (where registered) the father

Immigration status in the UK

Indefinite or limited leave to enter or remain in the UK under or outside the Immigration Rules; exemption from immigration control; or the entitlement to reside in the UK or the right of permanent residence in the UK under regulations 13 to 15 of the EEA Regulations

Irish citizen

A person who is an Irish citizen as a matter of Irish law

Marriage of convenience, civil partnership of convenience, durable partnership of convenience

A marriage, civil partnership or durable partnership entered into as a means to circumvent:

(a) any criterion the party would have to meet in order to enjoy a right to enter or reside in the UK under the EEA Regulations; or

(b) any other provision of UK immigration law or any requirement of the Immigration Rules; or

(c) any criterion the party would otherwise have to meet in order to enjoy a right to enter or reside in the UK under EU law

Non-EU citizen

A person who is not an EU citizen and is not a British citizen

Person who has ceased activity

The person:

(a) has terminated activity as a worker or self-employed person in the UK and either reached the age of entitlement to a state pension on terminating that activity or, in the case of a worker, ceased working to take early retirement; and immediately before that termination, was a worker or self-employed person in the UK for at least 12 months and resided in the UK for a continuous qualifying period of more than three years; or

(b) stopped being a worker or self-employed person owing to permanent incapacity to work, having resided in the UK for a continuous qualifying period of more than the preceding two years or the incapacity having resulted from an accident at work or an occupational disease that entitles the person to a pension payable in full or in part by an institution in the UK; or

(c) resided in the UK for a continuous qualifying period of at least three years as a worker or self-employed person, immediately before becoming a worker or self-employed person in an EU country mentioned in the entry for ‘EU citizen’ in this table, while retaining a place of residence in the UK to which they return, as a rule, at least once a week

In addition, the conditions as to length of residence and of employment in sub-paragraphs (a) and (b), above, do not apply where the decision-maker is satisfied, including by the required evidence of family relationship, that the relevant EU citizen is the spouse or civil partner of a British citizen (substituting ‘British citizen’ for ‘relevant EU citizen’ in the entry for, as the case may be, ‘spouse’ or ‘civil partner’ in this table)

Qualifying British citizen

A British citizen who:

(a) has been or was resident in the UK with the applicant for a continuous qualifying period which corresponds with the continuous qualifying period on which the applicant relies; and

(b) satisfied regulation 9(2) and (4)(a) of the EEA Regulations (as the British citizen (“BC”) to whom those provisions refer) immediately before returning to the UK with the applicant (who is to be treated as the family member (“F”) to whom those provisions refer)

Relevant document

A family permit, registration certificate, residence card, document certifying permanent residence or permanent residence card which:

(a) was issued by the UK under the EEA Regulations (and was not subsequently revoked, or fell to be so, because the relationship or dependency had never existed or had ceased); and

(b) has not expired or which remained valid for the period of residence relied upon

Relevant EU citizen

Means:

(a) an EU citizen resident in the UK for a continuous qualifying period; or

(b) where the applicant is a family member of an EU citizen resident in the UK for a continuous qualifying period who is a relevant naturalised British citizen, a relevant naturalised British citizen resident in the UK for a continuous qualifying period

Relevant naturalised British citizen

[to be confirmed in light of planned changes to the EEA Regulations to implement the CJEU judgment in Lounes]

Required application process

[see paragraph 4.4, above: drafting to be confirmed]

Required biometrics

[see paragraph 4.10, above: drafting to be confirmed]

Required evidence of family relationship

In the case of:

(a) a spouse – a relevant document as the spouse of the relevant EU citizen, or a valid marriage certificate recognised under the law of England and Wales, Scotland or Northern Ireland or of the country in which the marriage was contracted;

(b) a civil partner – a relevant document as the civil partner of the relevant EU citizen; a valid civil partnership certificate recognised under the law of England and Wales, Scotland or Northern Ireland; or the valid overseas registration document for a same sex relationship which is entitled to be treated as a civil partnership under the Civil Partnership Act 2004;

(c) a child – a relevant document issued on the basis of the relevant family relationship or their evidence of birth;

(d) a dependent parent – a relevant document issued on the basis of the relevant family relationship or their evidence of birth;

(e) a durable partner:

(i) a relevant document as the durable partner of the relevant EU citizen and, unless this confirms the right of permanent residence in the UK under regulation 15 of the EEA Regulations, evidence which satisfies the decision-maker that the durable partnership continues to subsist (or did so for the period of residence relied upon); or

(ii) where the applicant is seeking to come to the UK after the specified date, evidence which satisfies the decision-maker that the partnership was formed and was durable before that date and that the partnership remains durable; or

(f) a dependent relative – a relevant document as the dependent relative of their sponsor (in the entry for ‘dependent relative’ in this table) and, unless this confirms the right of permanent residence in the UK under regulation 15 of the EEA Regulations, evidence which satisfies the decision-maker that the relationship and dependency continue to subsist (or did so for the period of residence relied upon)

In addition:

(a) where the eligibility requirements to be met for leave to be granted under this Appendix relate to the death of a person, the required evidence of family relationship must include their death certificate or other evidence which the decision-maker is satisfied evidences the death; and

(b) where the applicant is a non-EU citizen without a documented right of permanent residence, the required evidence of family relationship must include:

(i) the following proof of identity and nationality of (as the case may be) the relevant EU citizen, or the qualifying British citizen, of whom the applicant is a family member: (aa) (in the case of an EU citizen or a qualifying British citizen) their valid passport (and ‘valid’ here and in sub-paragraph (bb) means that the document is genuine and has not expired or been cancelled or invalidated); or

(bb) (in the case of an EU citizen) their valid national identity card; or

(cc) (in the case of an Irish citizen) their full birth certificate, unless (in any case) the decision-maker agrees to accept alternative evidence of identity and nationality where the applicant is unable to obtain or produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons; and

(ii) evidence which satisfies the decision-maker that:

(aa) where the applicant is a family member of a relevant EU citizen, either that EU citizen was a relevant EU citizen throughout the continuous qualifying period on which the applicant relies as being a family member of a relevant EU citizen; or that EU citizen is a relevant EU citizen who has been or is being granted indefinite leave to remain under this Appendix (or who would be granted that leave, if they made a valid application under this Appendix); or

(bb) where the applicant is a family member of a qualifying British citizen, that British citizen was a qualifying British citizen throughout the continuous qualifying period on which the applicant relies as being a family member of a qualifying British citizen; and

(c) other than in sub-paragraph (b)(i), above, where, in order to meet the requirements of this entry, the applicant submits a copy (and not the original) of a document, the decision-maker can require the applicant to submit the original document where the decision-maker has reasonable doubt as to the authenticity of the copy submitted

Required proof of identity and nationality

(a) (in the case of an EU citizen or a non-EU citizen) their valid passport; or

(b) (in the case of an EU citizen) their valid national identity card; or

(c) (in the case of an Irish citizen) their full birth certificate; or (d) (in the case of a non-EU citizen) their valid specified relevant document or their valid biometric immigration document (as defined in section 5 of the UK Borders Act 2007), unless (in any case) the decision-maker agrees to accept alternative evidence of identity and nationality where the applicant is unable to obtain or produce the required document due to circumstances beyond their control or to compelling practical or compassionate reasons

In addition, ‘valid’ here means that the document is genuine and has not expired or been cancelled or invalidated

Self-employed person

There is evidence which satisfies the decision-maker that the person is, or (as the case may be) for the relevant period was, either:

(a) a self-employed person as defined in regulation 4(1) of the EEA Regulations; or

(b) a person who is or was no longer in self-employment but who continues or continued to be treated as a self-employed person within the meaning of qualified person under regulation 6

Specified date

2359 Greenwich Mean Time on 31 December 2020

Specified relevant document

Means, within the meaning of ‘relevant document’ in the relevant entry in this table, a residence card or permanent residence card issued on the basis of an application made on or after 16 March 2015

Spouse

At the date of application:

(a) the person is party to a marriage with a relevant EU citizen (or with a qualifying British citizen) and the marriage is recognised under the law of England and Wales, Scotland or Northern Ireland or is lawfully recognised in the country in which it was contracted; and

(b) it is not a marriage of convenience; and

(c) neither party has another spouse, a civil partner or a durable partner with (in any of those circumstances) immigration status in the UK based on that person’s relationship with that party

Supervening event

Means that at the date of application:

(a) the applicant has been absent from the UK for a period of more than five consecutive years (at any point since they last acquired the right of permanent residence in the UK under regulation 15 of the EEA Regulations); or

(b) any of the following events has occurred, unless it has been set aside or no longer has effect in respect of the person:

(i) any decision or order to exclude or remove under regulation 23 or 32 of the EEA Regulations; or

(ii) a decision to which regulation 15(4) of the EEA Regulations otherwise refers, unless that decision arose from a previous decision under regulation 24(1); or

(iii) an exclusion decision; or

(iv) a deportation order, other than under the EEA Regulations

Termination of the marriage or civil partnership

The date on which the order finally terminating the marriage or civil partnership is made by a court

Valid evidence of their indefinite leave to enter or remain

Means:

(a) a valid biometric immigration document (as defined in section 5 of the UK Borders Act 2007), a valid stamp or endorsement in a passport (whether or not the passport has expired) or other valid document issued by the Home Office, confirming that the applicant has indefinite leave to enter or remain in the UK, which has not lapsed or been revoked or invalidated; or

(b) the decision-maker is otherwise satisfied from the information available to them that the applicant has indefinite leave to enter or remain in the UK, which has not lapsed or been revoked or invalidated

Worker

There is evidence which satisfies the decision-maker that the person is, or (as the case may be) for the relevant period was, either:

(a) a worker as defined in regulation 4(1) of the EEA Regulations; or

(b) a person who is or was no longer working but who continues or continued to be treated as a worker within the meaning of qualified person under regulation 6

Annex 2 – Consideration of a valid application

A2.1. A valid application made under this Appendix will be decided on the basis of:

(a) the information and evidence provided by the applicant, including in response to any request for further information or evidence made by the decision-maker; and

(b) any other information or evidence made available to the decision-maker (including from other government departments) at the date of decision.

A2.2.(1) For the purposes of deciding whether the applicant meets the eligibility requirements for indefinite leave to remain or for limited leave to remain, the decision-maker may invite the applicant to:

(a) provide further information or evidence that they meet those requirements; or

(b) attend an interview with the decision-maker.

(2) If the applicant purports to meet the eligibility requirements for indefinite leave to remain or for limited leave to remain on the basis of a relationship with another person (“P”), including where P is a qualifying British citizen, the decision-maker may invite P to:

(a) provide information or evidence about their relationship with the applicant, their residence in the UK or, where P is a qualifying British citizen, their residence in an EU country mentioned in the entry for ‘EU citizen’ in the table at Annex 1 to this Appendix; or

(b) attend an interview with the decision-maker.

(3) If the applicant or P (as the case may be):

(a) fails to provide the information or evidence requested; or

(b) on at least two occasions, fails to attend an interview if so invited,

the decision-maker may draw any factual inferences about whether the applicant meets the eligibility requirements for indefinite leave to remain or for limited leave to remain as appear appropriate in the circumstances.

(4) The decision-maker may decide following the drawing of a factual inference under sub-paragraph (3) that the applicant does not meet the eligibility requirements for indefinite leave to remain or for limited leave to remain.

(5) The decision-maker must not decide that the applicant does not meet the eligibility requirements for indefinite leave to remain or for limited leave to remain on the sole basis that the applicant or P failed on at least two occasions to comply with an invitation to attend an interview.

  1. Bold is used once where a term is defined in Annex 1, as a proxy for hyperlinks for now. ↩

  2. This means for example that a person granted limited leave to remain as a family member of a relevant EU citizen will retain that leave if during its currency they become a family member who has retained the right of residence; they will not have to make a further application. ↩

  3. We are continuing to review definitions in paragraph 6 of the Immigration Rules and provisions in Part 1, Part 9 and elsewhere in the Rules to identify any others which need to be used, modified or disapplied for applications under this Appendix. ↩

  4. See paragraph 6.6, above: we are looking further at these and other aspects of this definition. ↩

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